OGH on the Limits of Freedom of Expression

Mar 7, 2025 Benn-Ibler Rechtsanwälte

Satire presupposes that the audience can understand that the object of parody did not originate from the producer of the parodied work but is a product of the parodist’s freedom of opinion.

In the case at hand, the plaintiff, an Austrian political party, has been calling for a restaurant subsidy for restaurants that serve regional and traditional Austrian food, which has been derided in the media and by opposition parties as a `Schnitzel bonus’. The editorial team of the second defendant, a publisher of a satirical online magazine, made fun of this subsidy satirically by sending fake letters to such `traditional’ Austrian restaurant owners. The letter also contained the plaintiff’s alleged demand for the creation of a publicly accessible online register listing non-traditional restaurants serving non-authentic Austrian fare, which the plaintiff, however, had never proposed. As a result, the plaintiff received numerous complaints from eateries.

The plaintiff demanded that the defendants be prohibited from writing, distributing, or publishing false mailings in the name of the plaintiff and using its logos, basing its claim on an unlawful interference with the party’s naming rights. The defendant claimed the letters were clearly satire and not meant to be taken seriously.

The court of first instance dismissed the action and ruled that the letters constituted permissible satire. The court of appeal confirmed this decision and did not uphold the plaintiff’s appeal. Restaurant owners would have clearly recognized the content as ironic. The defendant’s satire was covered by their right to freedom of expression.

However, the Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the plaintiff’s appeal.

The defendant’s letters did give the impression that they had been sent by the plaintiff. This, therefore, constituted a deception of the public as well as name misappropriation

Misappropriation of the plaintiff’s name might be justified as satire. The freedom of opinion and expression of a parodist can, in some cases, be of higher value than the interests of the individual whose personal rights have been infringed, provided that an anti-thematic treatment of the subject matter at hand is present and is also understood as such by the audience. However, this was not the case in this instance.

OGH 4 Ob 192/24z (21 January 2025)